The ongoing battle for the ability of the Jamestown S’Klallam tribe to put thousands of bags of oysters on the bottom of the shallow Dungeness Bay continues. Protect the Peninsula’s Future sued the U.S. Fish and Wildlife Service for not following it’s own rules in not writing a compatibility determination (CD) regarding the impact the Jamestown S’Klallam Tribe’s industrial oyster farm could have on the Dungeness National Wildlife Refuge in Sequim. While the U.S. District Court in Tacoma was finalizing its ruling, the Tribe asked to intervene. Twice the judge denied intervention. The case is whether the USFWS must write the CD, which it resists doing. The Tacoma judge advised the Tribe it could appeal his decision after he made his final ruling. The Tribe did not take that advice and instead appealed its inability to intervene, prior to a final ruling, to the U.S. 9th District Appellate Court in San Francisco. However the Appellate court found:
APPEAL DISMISSED; PETITION DENIED.
The Court stated:
“Appellate review requires finality—a decision that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”
“In addition to our jurisprudence concerning non-final orders, we have held that … determination is not immediately appealable, because it can be reviewed after a final judgment.”
“…we lack jurisdiction to hear S’Klallam’s appeal of the non-final district court orders.”Hopefully the Tacoma Judge will not take long to finish his ruling that the USFWS must write a compatibility determination.
This does not end the case, nor the Tribe’s determination to both seek the ability to farm the inside of Dungeness Spit, but is probably part of the reasoning that the Tribe has moved to take over both the Spit and Protection Island. Once that land transfer happens, if it does, it will allow the Tribe to avoid any Federal and State laws as it relates to environmental regulations over the two Federal Wildlife Refuges. A Tribal Council member has actually stated to the Port Townsend Leader that was a goal of the land transfers.
So the ruling on whether the U.S.F&W will have to follow their own laws and write a compatibility determination will need to await the judge’s final ruling. No understanding on when that ruling will come down.
If you want to help fund the legal battle, you can send checks to Protect the Peninsula’s Future at the following address:
Protect the Peninsula’s Future
PO Box 421
Sequim WA 98382